Lerose v. Princess Apartments, 2022 ONSC 7
CITATION: Lerose v. Princess Apartments, 2022 ONSC 7
DIVISIONAL COURT FILE NO.: 20-241
DATE: 20220103
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse, Mandhane JJ.
BETWEEN:
PRINCESS APARTMENTS Landlord /Respondent on Appeal
– and –
DIANE LEROSE Tenant/Appellant
Timothy M. Duggan, Counsel for Landlord
Self-represented
HEARD in Toronto by videoconference on December 17, 2021
Backhouse J.
Overview
[1] Did the Landlord and Tenant Board err in law in finding that the tenancy of Diane Lerose and Frank Lerose (“the Tenants”) should be terminated due to persistent late payment of rent?
[2] This appeal is brought by Diane Lerose (“the Appellant”). She raises two arguments in support of her appeal from the Review Order of the Landlord and Tenant Board (the “Board”), issued February 19, 2020: 1) lack of procedural fairness; and 2) an error in the exercise of its discretion to refuse more permanent relief from eviction under s. 83(2) of the Residential Tenancies Act, S.O.2006, c.17 (“the Act”).
[3] With respect to lack of procedural fairness, the Appellant submits that apart from the Landlord’s legal representative, there was no one from the Landlord present at the hearing. As a result, she did not have the opportunity to challenge the rent ledger through cross-examination. She also alleges that she did not have an opportunity to look at what was being put before the Board by the Landlord. She submits that she had no notice that the Landlord would rely upon mediated confidential agreements arising from prior Board proceedings between the parties and that this took her by surprise. She submits that had she known that the Landlord was going to rely upon these documents, she would have put in her own documents in response and it was improper for the Board to rely upon confidential agreements. The Appellant alleges that these breaches of procedural fairness amounted to a violation of her constitutional rights and that the Board was biased towards her.
[4] With respect to the Board’s exercise of discretion under s. 83(2) of the Act, the Appellant alleges that the Board did not have all the circumstances before it when it exercised its discretion not to grant more permanent relief from eviction.
[5] For the reasons set out below the appeal is dismissed. In summary, there is no error in law in the Board’s finding that the Appellant was persistently late in the payment of the rent. There is no evidence that the prior mediated agreements or orders were confidential and the Board did not err in taking the prior proceedings into consideration in declining the Appellant’s request to impose a further prompt payment order in lieu of an eviction order. There is no error of principle in the Board’s exercise of its discretion under s.83(2) of the Act. There is no basis for finding a lack of procedural unfairness or that the Board demonstrated bias or breached the Appellant’s Constitutional rights.
Background
[6] The Tenants have had a tenancy with the Landlord since September 2013 at Unit 208, 53 Warrender Avenue, Toronto Ontario.
Prior Proceedings before the Board
[7] Between November 2013 and March 2019, the Landlord brought at least seven applications against the Tenants on account of non-payment of rent. Several were resolved with mediated agreements. One led to an order that the Tenants satisfy rent arrears and pay rent promptly. Another resulted in an order terminating the tenancy unless arrears and other amounts were paid.
Proceedings before the Board which are the subject of this appeal
[8] In the fall of 2019, the Landlord moved to have the Tenants evicted for persistent late payment of rent. The Landlord served the Tenants with an eviction notice, the schedule to which showed late rent payment for each of the previous 14 months. The Landlord then filed an application with the Board to terminate the tenancy. After its December 6, 2019 hearing, the Board, on December 16, 2019 ordered the tenancy terminated and the apartment vacated on or before December 27, 2019.
[9] On December 23, 2019, the Tenants requested a review. They also obtained a temporary stay. On February 14, 2020, the Board granted the request and heard the matter de novo, finding that the Appellant had not been able to participate in the December 6, 2019 hearing due to bad weather. During the hearing, the Landlord’s representative provided the Board with the file numbers for prior Board proceedings between the parties.
Decision of the Board
[10] On February 19, 2020, the Board rendered its Review Order terminating the tenancy on the basis of its finding that rent was persistently paid late. It noted the Appellant’s request that eviction be refused on the condition that she pay the rent on time for the next 12 months. It noted five proceedings in the previous two years related to rent arrears, several predating the Appellant’s medical illness. It found that despite the Appellant having been the subject of a previous prompt payment order, she continued to pay the rent persistently late. The Board found the Appellant’s testimony about changes in her household finances insufficient. It concluded that it was not satisfied that rent would be paid on time, that it would be unfair to the Landlord to issue another prompt payment order, and that, given the Appellant’s medical issues, her eviction would be postponed to March 31, 2020.
Review of the Review Order
[11] On March 17, 2020, the Tenants requested a review of the Review Order. On March 18, 2020, the Board dismissed the review, concluding that the Review Order was not tainted by a serious error. It found that the Hearing Member’s findings were not unreasonable and that he did not exercise his discretion under s. 83 of the Act (to grant relief from eviction) in an unreasonable manner. No appeal is brought from the March 18, 2020 review of the Review Order.
Jurisdiction
[12] The court has jurisdiction to hear this appeal under s. 210(1) of the Act, on a question of law.
Standard of Review
[13] Since this is an appeal on a question of law, the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 36-37; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8.
[14] On issues of procedural fairness, the question is whether the appropriate level of procedural fairness was afforded: Okoye v. De Melo, 2021 ONSC 6201 (Div. Ct.), at para 13.
The Issues
[15] There are two issues in this matter:
Was there a lack of procedural fairness? and
Was there an error in principle in the Board’s exercise of its discretion to refuse more permanent relief from eviction under s. 83(2) of the Act?.
Analysis
Issue 1- Was there a lack of procedural fairness?
Did the Board err in relying on prior Board proceedings between the parties?
[16] There is no merit to the Appellant’s argument that the prior prompt payment agreement that was entered into between the Landlord and the Tenants in 2015 was confidential and the Board erred by referring to it. The prior mediated agreements and orders between the parties contained in the Appellant’s Exhibit Book filed in this appeal required the Tenants to pay the rent promptly for a specified period of time or face termination of their tenancy. None of the agreements or orders are stated to be confidential. While mediation proceedings are normally confidential, the settlement agreements and orders resulting from such mediations are not. There is no evidence in this case that the mediated agreements or orders are confidential.
[17] No Rule was brought to the Court’s attention that restricted a prior prompt payment order from being considered in proceedings between the same parties where the Appellant sought to avoid eviction under s.83(2) of the Act by the imposition of another prompt payment order.
[18] The Appellant’s argument that she had no notice of the Landlord’s intention to rely upon the prior prompt payment agreement and that taken by surprise, she was prevented from putting in her own documents in response also lacks merit. The Board’s Rules at the time of the Review Hearing did not require advance disclosure of documents. The Appellant did not request an adjournment to consult her copies of the materials relating to prior proceedings, to obtain further copies of same or to consult duty counsel. The Appellant does not particularize what documents she was prevented from presenting to the Review Board.
[19] The Appellant does not appear to argue that the prior proceedings between the Landlord and the Tenants that are referenced in the Review Order did not occur, or that the Board mischaracterized the same in the Review Order.
[20] Pursuant to section 202 of the Act, the Board has a mandate to “ascertain the real substance of all transactions and activities relating to …a rental unit”. In doing so, the Board may have regard to “the pattern of activities” relating to the rental unit. Section 201 of the Act permits the Board to, among other things, conduct any inquiry that it considers necessary, whether before, during or after a hearing.
[21] Section 15 of the Statutory Powers and Procedure Act, R.S.O.1990, c.S.22 (“SPPA”), which applies to proceedings before the Board, provides that a tribunal may accept into evidence any oral testimony or document regardless of whether same is given under oath or affirmation, and regardless of whether same would be admissible as evidence in a court proceeding.
[22] On cross-examination when the prior proceedings were put to the Appellant, while not being able to recall the particulars, she did not deny that the same had occurred and agreed that she had “been here a lot of times”.
[23] In his closing submissions, the Landlord’s representative provided the Board with the Board file numbers for the prior proceedings. This was admissible by the Board as evidence pursuant to Section 15 of the SPPA. The Appellant did not object to the Board considering the prior proceedings at that time, despite having an opportunity to do so.
[24] Section 16 of the SPPA provides that a tribunal may, in making its decision in any proceeding, take notice of facts that may be judicially noted. This would include the Board’s records of prior proceedings before it between the same parties.
[25] I cannot agree that the Board erred in considering that there had been a prior prompt payment order.
[26] There was no impropriety, unfairness or legal error in the Board considering the prior proceedings.
Did the Board err in finding persistent late payment of rent?
[27] The Appellant submits that the Board erred in finding persistent late payment of rent without documentary evidence of same.
[28] A schedule to the Eviction Notice set out the Tenants’ history of persistent late payment of the rent. The Eviction Notice, including that schedule, formed part of the record before the Board. It would have been clear to the Appellant prior to the hearing from the schedule what late payments the Landlord was relying upon. The Appellant does not argue that she was not actually persistently late in paying the rent or state in what way the schedule was not accurate. She does not particularize what documents she would have submitted to the Board that she was prevented from doing. She did not ask for an adjournment so that she could review the rent ledger, if, in fact, she did not have an opportunity to review it at the hearing, on which the parties appear to disagree. She did not ask for an adjournment to obtain documents to refute the rent ledger. She did not argue that she was prejudiced by her inability to cross-examine a representative of the Landlord with respect to the rent ledger. It is important that issues of alleged procedural unfairness get raised before the tribunal of first instance so that that tribunal has an opportunity to deal with them before the hearing is concluded.
[29] The Board’s finding that the Appellant had persistently paid the rent late was a finding of fact, or of mixed fact and law, that is not open to appeal by the Appellant. There is no error of law.
Did the Board demonstrate bias or breach Constitutional rights?
[30] The Appellant alleges that the Board failed to uphold the rights to an unbiased fair hearing and violated the Appellant’s Constitutional rights. Being devoid of any particulars, this argument is fatally deficient. (Elguindy v. St. Joseph’s Health Care London, 2017 ONSC 4247 (Div.Ct.) at para.38.) The Appellant did not identify anything in the record that would overcome the strong presumption of judicial and quasi-judicial impartiality to which the Board is entitled. (Briarlane v. Limas, 2020 ONSC 7118 (Div.Ct.) at para.29.) There is no basis for finding the Board demonstrated bias or breached the Appellant’s Constitutional rights.
[31] There was no procedural unfairness.
Issue 2- Was there an error in principle in the Board’s exercise of its discretion to refuse more permanent relief from eviction under s. 83(2) of the Act?
[32] The Appellant alleges that the Board made a variety of errors in failing or refusing to grant relief from eviction pursuant to section 83 of the Act. While the Board did grant some relief from eviction, the Appellant argues that it should have simply dismissed the Landlord’s request to evict her. Section 83 of the Act provides that before granting an application for an order evicting a tenant, the Board must review the circumstances and consider whether or not it should exercise its powers to refuse to grant the application. Although the Appellant submits that the Board did not have all the circumstances before it in exercising its discretion under s.83(2), she does not particularize what circumstances the Board did not have that she relies upon.
[33] In this case, as was found in the Second Review Order, the Board considered all of the disclosed circumstances and whether to grant relief from eviction and ultimately found that it would be unfair to do so, but did find that it was appropriate to delay eviction. The Board’s exercise of discretion in this regard, absent an error in principle, is entitled to deference from this Court. (Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244 (Div.Ct.) at para.47; Oz v. Shearer, 2020 ONSC 6685 (Div.Ct.) at paras.30-31.)
Conclusion
[34] In the result, I find no lack of procedural fairness and no error in principle in the Board’s exercise of its discretion under s.83(2) of the Act. The appeal is therefore dismissed with costs in the amount of $1000. The Sheriff is instructed to ensure that the Tenants are not evicted from their premises prior to the expiration of thirty days from the release of these reasons.
Backhouse J.
I agree _______________________________
Sachs J.
I agree _______________________________
Mandhane J.
Released: January 3, 2022
CITATION: Lerose v. Princess Apartments, 2022 ONSC 7
DIVISIONAL COURT FILE NO.: 20-241
DATE: 20220103
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse, Mandhane JJ.
BETWEEN:
PRINCESS APARTMENTS Landlord /Respondent on Appeal
– and –
DIANE LEROSE Tenant/Appellant
REASONS FOR JUDGMENT
Backhouse, J.
Released: January 3, 2022